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Carstens (Applicant) v. Pittwater Council (Respondent)

Country/Territory
Australia
Type of court
Others
Date
Nov 10, 1999
Source
UNEP, InforMEA
Court name
Land and Environment Court of New South Wales
Judge
Lloyd
Reference number
10093 of 1999
Language
English
Subject
Land & soil
Keyword
EIA Legal proceedings/administrative proceedings Land-use planning
Abstract
This was an appeal by the applicant under s 56A of the Land & Environment Court Act 1979 against the decision of a Commissioner. The Commissioner had dismissed an appeal by the applicant against the deemed refusal of the respondent, Pittwater Council to consent to a development application to erect a dwelling house, swimming pool, tennis court and landscaping. An appeal under s 56A was limited to a question of law. The appeal raised three central grounds: Ground (1): The Commissioner took into account irrelevant considerations, namely certain draft development control plans and a policy document. Ground (2): The Commissioner wrongly determined that he had no jurisdiction to consider the application because of an erroneous finding by him of a jurisdictional fact that the Pittwater spotted gum ecological community was present on the land (which in turn required a species impact statement before the application could be considered); and Ground (3): The Commissioner departed from the rules of procedural fairness during and following a view of the site. According to the applicant, none of the draft development control plans nor the Values Statement were in force or had been adopted by the Council, neither were they to be taken into consideration: s 79C(1) of the Environmental Planning & Assessment Act (EP&A Act) specified the instruments and draft instruments to be taken into consideration and which did not include those described. The applicant submitted that the Act, properly construed, was a complete code and that the consideration by the consent authority (in this case the Commissioner) of a draft development control plan or other document of a kind not referred to in s 79C(1) was ultra vires. The consideration of an irrelevant matter, namely the draft DCPs, and the attributing of any weight thereto was an error of law. In considering whether the matters listed in s 79C(1) stated exhaustively the matters to be considered in determining a development application, the court analyzed the purpose and objects of the EP&A Act. These objects, in the opinion of the court, could only be given full effect by not adopting a narrow construction of s 79C(1). A narrow construction would exclude from consideration the objects of the Act. For example, one of the objects of the Act was to encourage ecologically sustainable development (s 5(a)(vii)). If s 79C(1) were to be regarded as an exclusive list of relevant considerations it would result in the exclusion from consideration of an important objective of the Act. s 79C(1) therefore set out the matters that had to be taken into consideration, but did not exclude from consideration other matters not included in those listed and which could be of relevance to the particular development application and which furthered the objects of the Act. Regarding Ground 2 the court held that assuming that the question of whether the Commissioner’s finding (that the community is present on the land) was a jurisdictional fact, there was evidence before the Commissioner upon which he could so find. The court stressed that on an appeal from a Commissioner with specialist expertise who had had the benefit of seeing and hearing the expert witnesses and viewing the site, a court of appeal which had jurisdiction to review findings of fact should generally exercise caution in substituting its own opinion for the Commissioner’s finding. It added that it could not be said that the Commissioner’s finding in this case was unreasonable. The court was thus not satisfied that ground 2 was established. Regarding Ground 3 the court decided that whilst the rules of procedural fairness applied both to the conduct of the view and to the hearing, there was no breach of those rules in this case. Thus, none of the grounds of appeal had been established. The appeal was dismissed.
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